High court decision adds urgency to Akaka Bill enactment

THE ISSUE

The state Supreme Court has ruled that the Office of Hawaiian Affairs can't be forced to sell ceded lands while political questions remain.

A state Supreme Court ruling this week blocks the forced sale or transfer of lands once owned by the Hawaiian monarchy "pending final resolution of native Hawaiian claims through the political process." The decision adds urgency to enactment of the Hawaiian sovereignty bill proposed by Sen. Daniel Akaka.

The overturning of a 2002 decision of Circuit Judge Sabrina McKenna leaves in limbo the status of 1.4 million acres of land ceded to the United States following the 1893 overthrow of the kingdom and transferred to the state upon admission. A 1993 congressional resolution apologizing for the overthrow states that native Hawaiians never "directly relinquished their claims" to the ceded lands.

Unlike Senate, House or concurrent resolutions expressing opinions by a single or both chambers of Congress, a joint resolution such as the Apology Resolution carries the force of law upon being signed by the president, in this case by then-President Clinton. Thus, Chief Justice Ronald Moon wrote in the high court's unanimous opinion, the Apology Resolution is "a public law" that must be obeyed.

The resolution "dictates that the ceded lands should be preserved pending a reconciliation between the United States and the native Hawaiian people," Moon wrote. In the meantime, he added, the "unrelinquished claims of native Hawaiians" warrant the land's protection from transfers.

The issue arose after the Legislature agreed in 1992 to compensate the Office of Hawaiian Affairs for parcels of ceded land on Maui and the Big Island to be developed as low-cost housing. OHA agreed to the transfer until the Apology Resolution was enacted in November 1993. The state wrote a $5.8 million check to OHA for compensation, but OHA rejected it and filed suit.

McKenna refused to block the transfer of land for development, ruling that OHA's claims amounted to a political rather than a legal issue to be decided in court. The Supreme Court essentially agreed that the issue is political but ruled that the Apology Resolution "dictates that the ceded lands be preserved" until the political questions are resolved.

The high court cited a 2000 recommendation by the Clinton administration's Justice and Interior departments "that native Hawaiian people should have self-determination over their own affairs within the framework of federal law, as do Native American tribes."

The Akaka bill, which would grant Hawaiians such self-determination, has been approved by the House and awaits Senate action but appears not to be veto-proof in either chamber. President Bush and Sen. John McCain, the Republican presidential frontrunner, oppose the Akaka Bill, while Democratic hopefuls Sens. Barack Obama and Hillary Clinton support it.

The court also cited measures approved by the state Legislature contemplating reconciliation and "monetary reparations" made to Hawaiians for land acquisitions. It also referred to Gov. Linda Lingle's 2003 State of the State pledge to work "with the Hawaiian community to resolve the ceded lands issue once and for all."